Tucson Bankruptcy Blog
Filing Bankruptcy in Arizona with Checks Still Pending
Pending transactions, such as checks and debits must be considered prior to filing the bankruptcy petition. This issue was addressed with In re Brubaker, 443 B.R. 176 (2011), when a debtor filed bankruptcy with a scheduled account balance of $513, when...
An Inherited Retirement Account Can Be Exempted in an Arizona Bankruptcy
Inherited retirement accounts are difficult to exempt and the analysis is complex. There is, however, an applicable exemption under Arizona Revised Statutes. Using federal exemptions, an inherited account is not exempt (See Clark v. Rameker 134 S.Ct....
Selling a Home During an “Open Bankruptcy” and Protecting the Proceeds in Arizona
Arizona has a friendly homestead exemption, which allows anyone over 18 years of age and who resides in Arizona, to protect up to $150,000 in equity (See A.R.S. §33-1101(A)(1)). If the homestead is sold, the resulting proceeds are also exempt up to this...
Arizona Supreme Court provides clarification on Statute of Limitations on a Collection Lawsuit
Arizona statutes allow a debt collector six years to file suit on an outstanding debt (See A.R.S. Section 12-548(A)(2)). The question at issue is when does the clock begin to run? This recent ruling by the Arizona Supreme Court holds that the six years begins to run with the first missed payment of the debt.
Undue Hardship Claims & The (Non-)Dischargeability of Student Loan Debt
Student Loan Disbursements Exempt from Bankruptcy Pursuant to 20 U.S.C. § 1095(d), student loans, grants, and work awards cannot be taken, via garnishment, attachment, or otherwise, by creditors to satisfy any debts owed by the student. While some states have opted...
Creditor Behavior found Objectively Coercive: Refusal to Release Title or Pickup Vehicle
In Pratt v. GMAC, 462 F. 3d 14 (1st Cir., 2006), debtors intended to surrender their vehicle by ceding possession rather than reaffirming the debt. The creditor wrote off the balance because the value of the vehicle was less than the costs of...
$20,000 Death Benefit Exemption, Trustee’s Rights to CSV of Life Insurance Policy and Inability to Designate a Beneficiary
Debtors are entitled to exempt all money from death benefits, not to exceed $20,000. The bankruptcy trustee may not sell a portion of the policy to a third party, thereby designating a new beneficiary.
Truth In Lending Act – Understanding Your Consumer Rights
TILA requires lenders to fully disclose the terms of the credit being offered including full transparency concerning: (1) interest rates, (2) the amount/percentage required to satisfy the loan, (3) time limits, (4) penalties, and (5) loan ownership. TILA allows consumers to file suit against lenders that attempt to claim a term or condition on a loan that they never disclosed.
BAP Uses Hatton II Version of Beard Test to Determine Dischargeability of Untimely Filed Tax Returns
The BAP for the Ninth Circuit held that the proper determination of the dischargeability of tax debt related to untimely filed tax returns is not limited to a narrow, exclusively objective analysis of the form and content of the tax returns; rather, it must be broad...
Collecting on Contempt – Contempt Order for Violation of Stay is Sanctions order, not mere Money Judgement
In the 2013 case of In re Wallace, the Bankruptcy Appellate Panel for the Ninth Circuit Court of Appeals held that a contempt order for violation of automatic stay entered by the Bankruptcy Court constituted a sanctions order to be paid within a set...
Six Year Statute of Limitations for Collecting on Credit Card Debt
Arizona statute of limitations on credit card debt is six years. Merely missing a payment does not start the clock on the statute of limitations. Unless there are contrary terms in the credit card account agreement, the lender must accelerate the debt or demand full payment for the clock on the statute of limitations to start running.
Fair Debt Collection Practices Act (FDCPA) – Understanding Your Rights
The purpose of the Federal Fair Debt Collection Practices Act (FDCPA) is to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively...
“No-Discharge” Language in Loan is Not Enforceable
In the case of In re Chionis, the Bankruptcy Appellate Panel of the Ninth Circuit Court of Appeals held that a creditor’s stated subjective belief that “no-discharge” language in a loan excepts the loan debt from a bankruptcy discharge does not...
Inherited IRAs are Explicitly Protected Under Arizona Law
Arizona law protects inherited IRA funds from creditors, even when the plan beneficiary files for bankruptcy.
A Chapter 13 Bankruptcy Discharges Post-Filing HOA Fees
Case: Goudelock v. Sixty-01 Association of Apartment Owners, 16-35384 (9th Cir. July 10, 2018) The Ninth Circuit court recently made a great decision in favor of homeowners surrendering their property after filing bankruptcy, and the issue of do you keep...
Matt Foley, Esq. & MBA
Matthew Foley is a Tucson attorney who is uniquely qualified in bankruptcy and debt settlement matters because of his extensive financial background in lending and credit. Matt holds dual JD & MBA degrees from Arizona State University’s Sandra Day O’Conner College of Law and nationally recognized W.P. Carey College of Business.